Firm News

I had the privilege this year of being a part of the team of lawyers representing the plaintiff in Wallace v. Tesoro. The opinion issued in favor of our client by the Fifth Circuit in that case created very positive law for SOX whistleblowers around the country. And now other whistleblowers from around the country are starting to use the decision to their advantage.

We are very pleased to report a recent victory for a whistleblower client. A unanimous panel of the Fifth Circuit U.S. Court of Appeals issued a decision last Friday reinstating Plaintiff Kevin Wallace’s Sarbanes-Oxley Act (SOX) whistleblower claim against Tesoro Corp.

Wallace worked for the petroleum company Tesoro as Vice President of Pricing and Commercial Analysis. He discovered structural flaws in Tesoro’s accounting system that garbled important financial results and tax reporting used by management, the Board of Directors, and Tesoro’s public filings. Wallace confirmed his findings with company experts and reported them internally. On March 12, 2010, Wallace reported internally that he was being retaliated against by management. He was fired within hours of this report.

The district court had previously dismissed the case based on several procedural motions filed by Tesoro. Tesoro argued that the case needed to be plead pursuant to FRCP 9(b)'s strict fraud pleading requirements. Tesoro also argued that the lawsuit raised factual issues that had not been presented with particularity to OSHA (the administrative agency charged with conducting initial investigation into SOX charges).

The Fifth Circuit reversed the dismissal and remanded the case back to district court for further proceedings and discovery.

Chris had the opportunity to speak with Colin O'Keefe of LXBNTV on employees being terminated over Ebola. In the brief video interview, Chris shares what he's been hearing on these firings and offers a bit of guidance to employers and employees on dealing with Ebola concerns.

Well, it has happened already. The firm is getting calls from employees who have been terminated or fear termination because their employers are afraid they may have contracted Ebola during recent trips to the African continent.

I was interviewed this week on WOAI-TV regarding this issue. Here's the video:

The Equal Employment Opportunity Commission ("EEOC") has filed suit against Taprite Fassco Manufacturing, Inc., a San Antonio-based supplier of CO2 regulators in the soda and beer industries, in a case related to a similar case recently filed against the same employer by The McKinney Law Firm.

Here is a copy of the EEOC's press release regarding their filing:

SAN ANTONIO, Texas -Taprite Fassco Manufacturing, Inc., a San Antonio-based supplier of CO2 regulators in the soda and beer industries, violated several federal anti-discrimination laws in its treatment of one of its quality control inspectors, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. The EEOC said the company subjected the woman to gender and disability discrimination and unlawfully retaliated against her for complaining.

According to the EEOC's lawsuit, after the quality control inspector, a longtime employee, raised questions to management concerning wage disparity between the sexes among workers at Taprite Fassco's San Antonio plant, management disciplined and demoted her into a less favorable and lower paying assembler position. The employee was physically unable to perform the new job because of her diagnosed rheumatoid arthritis and carpal tunnel syndrome.

The EEOC also charged that Taprite Fassco denied requests for accommodations that would have permitted the employee to continue working, thus violating the Americans with Disabilities Act (ADA). The EEOC said that even after she filed a complaint of discrimination alleging sex discrimination under both Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, Taprite Fassco opted to pay her male replacement (whom she initially trained) substantially more than she was compensated for performing essentially the same work.

The EEOC's San Antonio Field office filed suit (Civil Action No. 5:14-cv-00801) in U.S. District Court for the Western District of Texas, San Antonio Division, after first attempting to reach a pre-litigation settlement through the agency's administrative conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages for the victim, as well as injunctive relief.

"Enforcing laws that require equal pay for men and women performing the same jobs is a priority for the EEOC," said David Rivela, senior trial attorney in the EEOC's San Antonio Field Office. "Our employment statutes also safeguard workers from reprisal when the employees address managers about potentially unlawful practices. The EEOC will vigorously prosecute employers who retaliate against employees for simply seeking answers about their opportunities and protections."

This week I travelled to Austin to address a committee of the Texas legislature, arguing in favor of a statutory amendment that would return legal rights to workplace victims of sexual assault and rape -- rights that were (improperly in my opinion) taken away by the Texas Supreme Court in 2011. It was a privilege to be asked to come speak to the committee about this important issue. The Representatives were very engaged and their questions were thoughtful. The bill may not make it to the floor this session for a vote but we won't rest until this gets fixed. It's just too important.

Chris McKinney was quoted in today's story in the San Antonio Express News regarding the DOJ investigation of the Scooter Store and its resulting lay offs of employees.

Any furlough that doesn't have a return-to-work date for employees would be considered a “permanent layoff,” Texas Workforce Commission spokesman Mark Lavergne said in an email.

If workers haven't been told a specific date for when they should return to work, they would be wise to consider applying for unemployment benefits, said San Antonio employment lawyer Christopher McKinney.

Lavergne added that those employees would have to search for new employment to qualify for unemployment benefits.

The Scooter Store faces “significant business challenges,” which were “exacerbated” by the raid, according to Landon's email.

Christopher McKinney has been chosen as one of only six plaintiff-side employment lawyers in the State of Texas to be identified by Texas Super Lawyers as a "Rising Star." Candidates for the honor are determined by the organization through examination of 12 distinct categories of peer recognition and professional achievement, including: verdicts, settlements, experience, scholarly lectures and writings, honors and awards.

The Firm has filed a federal whistle-blower lawsuit against the refining company Tesoro on behalf of a former company executive who alleges he was fired in 2010 in retaliation for reporting financial irregularities at the company.

Christopher McKinney has been chosen by his peers as one of "San Antonio's Best Lawyers" in the area of employment law again in 2010. Few of the city's employment lawyers have been chosen for this award.

The following article originally appeared in Texas Lawyer on December 15, 2003:

Advocate or Opponent

Former employee sues disability rights group for alleged failure to accommodate

Mary Alice Robbins, Texas Lawyer December 15, 2003

An organization funded by the U.S. government to advocate for the rights of persons with disabilities is the defendant in a disability discrimination suit filed recently by one of its former employees.

Dian Cox alleges in her complaint in Cox v. Advocacy Inc., filed on Nov. 17 in the U.S. District Court for the Western District in Austin, that the "threatening and harassing behavior" of Advocacy representatives and the organization's "utter failure" to make a serious effort to accommodate her psychiatric disabilities forced her to leave her job with the organization in May 2000 -- allegations that Advocacy denies.

"This action by Advocacy Inc. illustrates the failure of this organization to protect its own employees with psychological disabilities from unfair employment practices and represents a failure of the group to carry out its own mission," alleges Christopher J. McKinney, who represents Cox.

Advocacy's 2002 annual report shows that the bulk of the organization's funding is provided by the federal government under the Developmental Disabilities Assistance and Bill of Rights Act, the Protection and Advocacy for Individuals With Mental Illness Act and other federal statutes.

McKinney, a labor and employment shareholder in San Antonio's McKinney & Webster, says he typically sues private employers for alleged discriminatory practices. This is the first time he has filed a suit against an organization that advocates for persons with disabilities, McKinney says.

"I wish I hadn't had to this time," he says.

Cox alleges in her original complaint that in 1998, after a decade on Advocacy's staff, her psychiatric illness caused her to take an extended leave from her job assisting mental health consumers with their rights, self-advocacy skills and other training. She has been diagnosed over a period of time as suffering from major depression, bipolar disorder, obsessive-compulsive disorder and attention deficit hyperactivity disorder, according to her complaint.

Cox further alleges in the complaint that when she returned to work in September 1999, Advocacy officials offered her a part-time position on a probationary basis, although her previous full-time position had not been filled, and removed her from various teams that made management and policy decisions for the organization. Advocacy officials told her that she could return to her full-time position in January 2000 if she performed adequately, Cox alleges in the complaint.

In her complaint, Cox also alleges that Advocacy set a rigid start time for her, even though the organization's practice had been to allow flexibility in the work schedules of its professional employees. As alleged in the complaint, requiring an exact time for them to arrive at work creates significant distress for persons with psychiatric illnesses because they experience difficulties in the morning due to their medication regimen and other factors.

Cox alleges in the complaint that on May 31, 2000 -- after many months of trying to set up a meeting with Advocacy officials to discuss reinstatement to her full-time position -- then-executive director James Comstock-Galagan refused to reinstate her to the full-time position and offered her a choice between a contract position that would provide no health benefits or continuing as a part-time employee, which would result in the loss of her Social Security Disability Income payments. Cox also alleges that Comstock-Galagan "took this final opportunity to again threaten" her, stating that if she opted to stay on as a part-time employee, she would be subject to termination if she were even one minute late for work.

McKinney contends that Advocacy constructively discharged Cox because she could not afford to continue working part time or accept a contract position that would not provide her with health insurance.***Cox has cleared the first hurdle in her case. On Aug. 22, the U.S. Equal Employment Opportunity Commission issued a determination that there is "reasonable cause" that Cox was discriminated against because of her disability, in that she was not granted a reasonable accommodation in her arrival time. The commission also said in the determination, signed by Pedro Esquivel, EEOC district director in San Antonio, that Cox was constructively discharged.***

McKinney Law Firm

The McKinney Law Firm represents clients in San Antonio, Central Texas and South Texas in employment law cases including discrimination, sexual harassment, wrongful termination, breach of contract and overtime claims.

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The responsible lawyer for this website is Christopher McKinney. For questions about this website, contact Christopher McKinney. The McKinney Law Firm serves clients throughout the State of Texas. The firm's main office is in San Antonio, Texas. Christopher McKinney is Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization. Unless otherwise indicated, other attorneys with the firm are not board certified by the Texas Board of Legal Specialization.

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